4LawSchool.com Outlines Bank
Author:
Professor: Dean Deutch Johnson v. M’Intosh p.25
Facts: An Indian tribe sold a plot of land
to Johnson. Thirty years later, the
Issues:
Whether the title given by the Indians can be recognized in the Courts
of the
Rule: The decree of 1763 stated that no one
could purchase land from an Indian because the land was not theirs, it belonged
to the government.
Application: Either because of the state of
conquering of the decree of 1763, the Indian government, could not sell the
land to the Johnson therefore it was like the sale never took place.
Conclusion/Holding: Judgment for Defendant
NOTES:
Ejectment cause for action.
(gets trespassers off)
Decree of 1763 gave no right to Indians to sell property
Tee-Hit-Ton Indians v.
United States p.36
Facts:
The tribe wanted compensation for the taking of certain timber by the
Issues:
Whether the tribe has the right to unrestricted possession, occupation
and use.
Application:
There has been no recognition by Congress of any legal rights in
petitioner to the land in question.
Indian occupation of land without government recognition of ownership
creates no rights against taking or extinction by the
Conclusion/Holding: Indian occupancy may be extinguished without
compensation.
Pierson v. Post p.51 NY
Facts: While Post was hunting and pursuing a fox with dogs, Pierson
intercepted the fox, killed it, and carried it off. From a trial court decision for the
plaintiff, the defendant appealed.
Issues:
Whether Post, by his pursuit, acquired such a right to, or property in,
the fox.
Rule: Property in such animals is acquired
by occupancy only. Pursuit alone vests
no property or right in the huntsman unless the animal is actually taken.
Application: Mere pursuit gave Post no legal
right to the fox.
Conclusion/Holding: Judgment reversed
Dissent: Kill all
foxes. If hunted professionally, it
should go to pursuer.
NOTES:
Form of action - trespass on the case (deals with personal
property with a specific remedy (money)
Elliff v. Texon Drilling
Facts: Both parties owned property over a huge gas reservoir in
which drilling rigs were established.
The defendant’s rig blow out and destroyed property of the
plaintiff.
Issues:
Whether the law of capture absolves respondents of any liability for the
negligent waste or destruction of petitioners’ gas and distillate.
Rule: The landowner is regarded as having
absolute title in severalty to the oil and gas in place beneath his land. Under the law of capture, there is no
liability for reasonable and legitimate drainage from the common pool.
Application: The negligent waste and destruction
of petitioners’ gas was neither a legitimate drainage of the minerals from
beneath their lands nor a lawful or reasonable appropriation of them. Consequently, the petitions did not lose
their right, title, and interest in them under the law of capture
Conclusion/Holding: Judgment reversed
NOTES:
Surface owner is the owner of the land and also the absolute
owner of the oil and gas below.
The law of capture modifies by allowing a producer to become
the owner of the oil; not trespasser.
Can’t use injurious capture/drilling - liable if do so
That rule modified by negligence - must capture - if not -
just waste - no law of capture.
Water: natural situation prevails -
surface water system
streams/groundwater - prior appropriation/use - 1st
user owns
permit system - state/organizations gives permits
riparian owner
reasonable use - balance rights of all
correlative rights - defined water for each user
free use/absolute ownership - creates conflicts
International News
Service v. Associated Press
p.66
Facts: INS waits for AP to release its stories on a community
bulletin board or a newspaper, then steals the idea and sells it to other
newspapers. From a
judgment for AP, INS appeals.
Issues:
Whether defendant may lawfully be restrained from appropriating news
taken from or from newspapers published by them, for the purpose of selling it
to defendant’s clients.
Rule: Upon the publication of news, property right is lost and may
be regarded as public knowledge. Each
party is under a duty so to conduct its own business as not unnecessarily or
unfairly to injure that of another.
Application: AP remains the owner of the stories
after they are published as far as their competition is concerned. This is unfair competition in business
Conclusion/Holding:
Affirmed.
Dissent #1: Property
does not arise from value. The defendant
should be enjoined from publishing news obtained from the AP for hours after publication
by the plaintiff unless it gives express credit to the AP.
Dissent #2: An
essential element of individual property is the legal right to exclude others
from enjoying it. They are merely using
its product without making compensation.
That they have a legal right to do, because the
product is not property. INS
should be able to use stories only if they do not credit AP. Legislatures should deal with this problem
and create laws.
Moore v. Regents of the
University of California p.82
Facts: Doctors, who were treating
Issues:
Whether it was a breach of fiduciary duty to disclose facts material to
the patient’s consent.
Rule: Conversion.
Application:
The complaint does not satisfy the established requirements of a
conversion cause of action. The cell
line was new and different from the plaintiff’s cells.
Conclusion/Holding:
Should be left to Legislature.
Dissent: The complaint
fully satisfies the established requirements for a conversion cause of action.
Nome 2000 v. Fagerstrom p.136
Facts:
From 1944 to 1978 D used, staked, and improved a cabin. From a denial for P’s directed verdict, P
appealed.
Issues:
Whether the jury could reasonably conclude that the Fagerstroms
adversely possessed the parcel.
Rule: For the statutory period ‘his use of the land was continuous,
open and
notorious, exclusive and hostile to the true owner.’
Application: The defendants cared for the parcel
as if they owned it. A quick
investigation of the premises would have been sufficient to place a reasonably
diligent landowner on notice that someone may have been exercising dominion and
control over their property.
Conclusion/Holding:
We conclude that the defendants adversely possed property.
Where, as in the present case, the land is rural, a lesser
exercise of dominion and control may be reasonable.
Where physical visibility is established, community repute is
also relevant evidence that the true owner was put on notice
NOTES:
The requirements:
actual - take and use the property as if it
were yours {may be easement if you just use it}
continuous - be there physically
exclusive - keep trespassers off the land like
what a owner would normally do
open and notorious - needs to be sufficient warning to
the public that a claim is being asserted
hostile (intend to deprive the
owner)(adverse) /under claim of right (could have a deed) / under color of
title for statutory (have document that intends to give you the property, may
decrease time needed)
One
objective test used, or
Two
subjective tests used:
Intentional dispossession - the
adverse possessor must be aware that she is occupying
property owned by someone else and must
intend to oust the true owner.
Good
Faith - those who mistakenly occupied property owned by someone else.
statutory period (tacking) - 21 years in
[pay taxes in some states] - some states require that you paid the property taxes during the
AP claim.
Can not
gain adverse possession when you are given permission to occupy the land.
Reasons for AP:
1.
Land development
2.
Distribution of wealth.
3.
Keep land claims alive
(Doctrine of repose)
Burden of proof belongs to
the AP
Standard of proof is clear
and convincing evidence (preponderance of the evidence is commonly the same but
the court distinguishes here)
Community Feed Store, Inc. v. Northeastern Culvert Corp. p.169 Vt
Facts: P sought a prescriptive easement for a parcel of land 60 X 90
feet owned by the D. Vehicles would use
the gravel lot for turning and backing while delivering goods to both the P and
D. Finding for the D, P appealed.
Issues:
Whether the court erred in making two findings of fact. First, if the plaintiff failed to prove the size of the easement,
and secondly, the use of the area was made with the permission of the fee
owner.
Rule: Slight deviations from the accustomed
route will not defeat an easement, only substantial changes which break the
continuity of the course to travel.
Application: The traveling of trucks entering the
easement had only slight deviations.
Plaintiff met its burden by establishing the general outlines of the
easement with reasonable certainty.
Conclusion/Holding: Judgment reversed.
-----Gravel area in
question
Feed
NCC Store
Acquiescence - acting like you have possession as the owner
(mindset of actual owner), different from permissive
The requirements for easements are generally the same but are
more lapse in most states.
Brown v. Gobble p.141 WV
Facts: D purchased their property by deed and were informed that
there property ran up to a fence, when, in actuality, the two-foot-wide tract
of land belonged to the P. The D took
care of the P and refused to let the P build on the property once the truth was
known. The P sued and won and the D
appealed based on tacking.
Rule: Where one by mistake occupies land up
to a line beyond his actual boundary, believing it to be the true line, such
belief will not defeat his right to claim that he holds such land adversely or
hostility under the doctrine of AP.
Application:
The land appeared to be part of the defendant’s property. They contend that they have established
adverse possession by tacking on the time periods that their predecessors in
title claimed the two-feet-wide tract.
Conclusion/Holding:
Judgment reversed.
Charrier v.
Facts:
P excavated two
tons of Indian artifacts. The TC denied
relief under the theory of unjust enrichment.
P appealed.
Issues:
The adequacy of proof that the Tunica-Biloxi tribe are
descendants of the inhabitants of the burial grounds, the ownership of the
artifacts, and the applicability of the theory of unjust enrichment.
Application:
The descendants of former Tunica Indians have adequately satisfied the
proof of descent. The fact that the
descendants resolved to bury certain items along with the bodies of the deceased,
does not result in a conclusion that the goods were abandoned. As for the unjust enrichment; plaintiff has
failed to prove that he has sustained the type of impoverishment needed.
Conclusion/Holding:
Judgment affirmed.
NOTES:
Declamatory relief
Grave robbing case
He claims he dug up buried treasure. The items were not gold and silver or stolen
goods and therefore distinctive.
Mr. Hoshman did not have the authority to allow access to the
property, therefore the defendant was a trespasser.
Items can be either lost, mislaid,
or abandoned
State v.
Facts:
Tedesco, a farmer who hires migrant workers, called police when
defendants, Tejeras and Shack walked onto his property to check on a injured
worker and a worker who needed legal advise.
Issues: Whether the migrant worker should be deemed to be a tenant
and thus entitled to the tenant’s right to receive visitors or whether his
residence on the employer’s property should be deemed to be merely incidental
and in the aid of his employment.
Rule: Representatives from
charities may enter upon the premises to seek out the worker at his living
quarters.
Application:
The migrant worker must be allowed to receive visitors there of his own
choice, so long as there is no behavior hurtful to
others. The farmer is entitled to pursue
his farming activities without interference but he cannot assert a right to
isolate the migrant worker in any respect significant for the worker’s well
being.
Conclusion/Holding: The defendants did not violate the trespassing statue. Judgment reversed.
Notes:
$100,000 in attorney’s fee in a NJ
appeal.
Property rights serve human values. Human rights are higher than property rights
in NJ. (liberal)
The key is communication to the farmworkers.
Most justices say that property rights have changed over
time.
Lloyd Corp., Ltd. V. Tanner
Facts:
Lloyd Corp., owner, made the D stop
distributing handbills. The DC found the
Center was equivalent to a public business district and that their rules
violated First Amendment rights. The
Court of Appeals affirmed.
Issues:
Whether respondents, in the exercise of asserted First Amendment rights,
may distribute handbills on Lloyd’s private property contrary to its wishes and
contrary to a policy enforced against all handbilling.
Rule: The Constitution does not require private property to be used
for public use, nor does it lose its private character because the public is
invited to use it.
Application:
Marsh v.
Conclusion/Holding: Judgment reversed.
DISSENTING: In Marsh,
“the more an owner, for his advantage, opens up his property for use by the
public in general, the more so his rights of those who use it”. It is a balance we are striking between
freedom of speech and freedom of private property.
N.J. Coalition Against
War in the
Facts:
The respondent petitioned 10 large malls to hand out anti-war
leaflets. TJ found for Ds and AJ
affirmed.
Issues:
Whether the defendant regional and community shopping centers must
permit leafleting on social issues.
Rule: Constitution affords no general right to free speech in
privately owned shopping centers.
Application:
Regional malls compete with and have displaced downtown business
districts as the gathering point of citizens.
The New Jersey Constitution’s right to free speech is broader than the
First Amendment. The court contended that leafleting would not hurt the business
of the mall as it did not for downtown businesses.
Conclusion/Holding: We decide that the defendant’s rules prohibiting leafleting
violate plaintiff’s free speech rights.
DISSENTING: The
primary users of shopping malls are shoppers.
It is a business. Some groups
would offend shoppers.
NOTES:
Mall owners wanted to keep it peaceful for shoppers.
Green Party of
Facts:
Plaintiff, wanted to leaflet Hartz.
The mall wanted him to follow three regulations. 1. Get
a $1,000,000 insurance policy. 2. Sign a “hold harmless” clause, and 3. Only one day per year. The premium for the insurance policy was $665
which was cost prohibitive. P filed suit
and was allowed to leaflet one day without insurance. The Chancery Division ruled
all three regulations were invalid. AC
held that all three regulations were good faith.
Issues:
What legal standard should determine free speech activities at shopping centers.
Rule: Peaceful leafleting are expressive activities involving
“speech” protected by the First Amendment.
Application:
Regional malls compete with and have displaced downtown business
districts as the gathering point of citizens.
The court observed that property rights must yield to the public
interests.
Conclusion/Holding: We disagree that the business judgment rule is the proper
standard
DISSENTING: The primary users of shopping malls are
shoppers. It is a business. Some groups would offend shoppers.
NOTES:
Stadium
Home Depot
Matthews v. Bay Head
Improvement Association
N.J.
p.258
Facts: D owned six out of 76 parcels of
oceanfront land. They lease the other
parcels from private landowners. D owns
the land commencing at the end of seven of these streets for the width of each
street and extending through the upper dry sand to the mean water line. It charges residents $60 to $90 per year for
membership.
Issues: Whether the public has a right to
use the dry sand area owned by a quasi-public body.
Rule: Land covered by tidal waters belongs
to the sovereign, but for the common use of all people.
Application: The public must be able to have access to the
beach as well as the dry area. The
complete pleasure of swimming must be accompanied by intermittent periods of
rest and relaxation beyond the water’s edge.
The Association’s activities paralleled those of a municipality in its
operation of the beachfront. There is no
public beach.
Conclusion/Holding: The public must be given both
access to and use of privately-owned dry sand areas
Noone v. Price (W.
Facts: The Ps purchased a home and four years later they became
aware that the wall under their front porch was giving way and that the living
room plaster had cracked. The defendant
owned a retaining wall built on the bottom of the hill.
Issues:
Whether the defendant was negligent in failing to provide lateral
support for their home.
Rule: An adjacent landowner is strictly
liable for acts of commission and omission on his part that result in the withdrawal
of lateral support to his neighbor’s property; however, there is no obligation
to support structures that land cannot naturally support.
Application: One who removes natural lateral support and substitutes artificial support to replace it, have an obligation
to maintain it. The defendant merely had
the obligation to maintain the wall to support the plaintiff’s land in its
natural condition.
Conclusion/Holding: Remanded for further hearing.
NOTES:
case took 14 years (NY average 7 years)
Friendswood Development Co. v. Smith-Southwest Industries, Inc. (
Facts: P alleges damage from D’s past and continuing withdraws of
vast quantities of underground water from wells on defendants’ nearby
lands. Plaintiff sues on negligence and
nuisance.
Issues:
Whether the defendant is liable for subjacent support to the plaintiff.
Rule: Owners have absolute ownership over their property. Law of capture except when
wasteful.
Application: P argue for the reasonable use rule. Only waste and malice
are limitations to the absolute ownership rule.
Conclusion/Holding: Holding against the plaintiff.
Dissent: This is a
nuisance case. The plaintiffs assert an
absolute right to keep the surface of their land at its natural horizon. The plaintiff does have a right to lateral
support.
NOTES:
Building codes may not a cause of action to support a law
suits. In these cases, common law is
used.
Page County Appliance Center, Inc. v. Honeywell, Inc. (
Facts: P owned and operated an appliance store with radiation
leaking computers next door. P sued
Honeywell and ITT for nuisance and tortuous interference with business
relations. J for the plaintiff, defendants appeal.
Issues: Whether the court erred in not addressing the issue of
unusually sensitive areas.
Rule: The plaintiff cannot, by devoting his
own land to an unusually sensitive use…make a nuisance out of conduct of the
adjoining defendant which would otherwise be harmless.
Application: To balance the issue of unusually sensitive area, the trier
of fact needs to look at certain uses.
The existence of a nuisance is not affected by the intention of its
creator not to injury anyone.
Conclusion/Holding:
The court on retrial should provide more guidance for the jury. Judgment reversed.
NOTES:
Nuisance per se - Certain businesses in residential areas;
funeral homes, sewer plant
Nuisance in fact (per accident) - certain acts that are a
nuisance
Private nuisance - only affects a small number of people
Public nuisance - harm to society in general or large numbers
of people
Nuisance - unreasonable use of the land which causes
substantial harm
Proper remedy - injunction; damages
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (
Facts: P brought suit because D started to build an addition to
their hotel that would have shadowed the P’s resort hotel.
Issues: Plaintiff claims right to negative easement
Rule: The landowner had no legal right, in the absence of an
easement, to unobstructed light and air from the enjoining land.
Application: Where a structure serves a useful
and beneficial purpose, it does not give rise to a cause of action, either for
damages or for an injunction, even though it causes injury to another by
cutting off the light and air and interfering with the view that would
otherwise be available.
Conclusion/Holding: Judgment reversed.
PLAINTIFF
Proposed Building
Defendant
Prah v. Maretti (
Facts: D built his house next door to the P’s solar powered home.
Issues: Whether a construction of a residence interferes with his
access to an unobstructed path for sunlight across the neighbor’s property.
Rule: Private nuisance common law:
1.
The right of landowners to use their
property as they wished, as long as they did not cause physical damage to a
neighbor.
2.
Sunlight was valued only for
aesthetic enjoyment or as illumination.
3.
Society had a significant interest in
not restricting or impeding land development.
Application:
Private nuisance law has the flexibility to protect both a landowner’s
right of access to sunlight and another landowner’s right to develop land. Recognition of a nuisance claim for
unreasonable obstruction of access to sunlight will not prevent land development
or unduly hinder the use of adjoining land.
Access to sunlight has taken on a new significance in recent years. A landowner’s compliance with zoning laws
does not automatically bar a nuisance claim.
Conclusion/Holding:
Judgment reversed.
Dissent: A landowner’s
right to use his property within the limits of ordinances, statues, and
restrictions of record where such use is necessary to serve his legitimate
needs is a fundamental precept of a free society which this court should strive
to uphold.
Holbrook v.
Facts: The A gave permission to D to use the road for eight
years. The right to the use of this
easement was not established by prescription.
The appellee came to the
Issues:
Whether an easement by estoppel (Irrevocable License) could be
established.
Application: There is no other location over which
a roadway could reasonably be built to provide an outlet for appellees. D used to road to get to their home,
construction of the residence, and improvement of the road.
Conclusion/Holding:
Judgment affirmed.
Rase v. Castle Mountain
Ranch, Inc. (
Facts: The P owned homes around lake purchased by D who wants to
kick them out. P had a license agreement
with the prior owner. The court entered
judgment for a constructive trust.
Both sides appeal.
Issues:
Whether the agreement between the cabin owners and Tavenner entitled the
owners to an irrevocable license.
Application: Tavenner misled the cabin owners
into believing they did not have to fear the loss of their investment and so
allowed them to act to their detriment.
Conclusion/Holding:
Judgment affirmed. Payment or ingress and egress.
A-----------ŕ------B--------ŕ-----------C (equitable owner)
title beneift
license coupled with an interest
Irrevocable license terminates when the use
terminates
An easement does not terminate from
nonuse.
Constructive trusts are not required in
writing.
Granite Property
Limited Partnership v. Manns (Ill.1987) p.396
Facts:
D bought a parcel from the P who maintains two easements for access purposes. The D admitted that he saw the two easements
before he purchased the property. Form a
judgment for the P, D appealed.
Issues:
Did the plaintiff acquire an easement by implied reservation over
the driveways of the defendant?
Rule: There are two types of easements - easement by necessity and
the easement implied from a pre-existing use.
An easement implied from pre-existing use has three elements:
1.
common ownership of parcel then a
transfer separating the ownership
2.
before separation, the common owner
used part of the parcel for the benefit of another part, and the use was
apparent, obvious, continuous, and permanent and
3.
the claimed easement is necessary and
beneficial to the enjoyment of the parcel conveyed by the grantor.
Application: Easements were apparent, permanent,
and subject to continuous, uninterrupted, and actual use and reasonably
necessary for the beneficial use and enjoyment of the shopping center and the
apartment complex.
Conclusion/Holding:
Judgment affirmed.
Easements - express
prescription
by implication (quasi-easement) (by reservation or by grant)
by necessity
appurtenant
in gross
dominant estate (tenement); servient estate
(tenement);
actual notice
inquiry notice
constructive notice
Finn v. Williams (Ill.1941) p.403
Facts: Ps charge that the nearest and only available means of egress
from and ingress to their land to a highway is by means of a right of way over
D’s tract. Ps must now walk, with their
livestock, to the nearest road
Issues:
Whether P has an easement by necessity over the defendant.
Rule: Where an owner of land conveys a
parcel thereof which has no outlet to a highway except over the remaining lands
of the grantor or over the land of strangers, a way by necessity exists over
the remaining lands of the grantor.
Conclusion/Holding:
Judgment for the plaintiff.
Green v. Lupo (Wash. Ct. App. 1982) p.415
Facts: The D purchased parcel from Ps. The P agreed to a deed release to a small
section in return for the promise of an easement along the southern border of
their land. P used the easement as a
practice runway for their motorcycles.
The court ordered the plaintiff’s use to be limited to ingress and
egress for their own home and prohibited the passage of motorcycles. Plaintiffs appeal.
Application: In this case the easement was
appurtenant. A servient owner is
entitled to impose reasonable restraints on a right of way to avoid a greater
burden on the servient owner’s estate so long as such restraints do not
unreasonably interfere with the dominant owner’s use.
Conclusion/Holding:
Reversed and remanded so not to create a dangerous nuisance.